Patna High Court
Toofani Ram vs The State Of Bihar on 15 October, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.406 of 2023
Arising Out of PS. Case No.-489 Year-2020 Thana- KUCHAIKOTE District- Gopalganj
======================================================
1. Toofani Ram, Son of Vishwanath Ram, R/O Village- Bagaha, P.S- Jadopur,
Distt.- Gopalganj.
2. Ramkripal Yadav, S/O Late Baleshwar Yadav, R/O Koilaswa, P.S- Patherwa,
Distt.- Kushinagar (U.P).
... ... Appellants
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellant/s : Ms. Preety Chaudhary, Advocate
Mr. Kumar Harshvardhan, Advocate
Mr. Rajnikant, Advocate
For the Respondent/s : Mr. Bipin Kumar, Addl.PP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SOURENDRA PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 15-10-2025
Heard learned counsel for the appellants and learned
Additional Public Prosecutor for the State.
2. This appeal is arising out of judgment of conviction
dated 18.03.2023 (hereinafter referred to as the 'impugned
judgment') and the order of sentence dated 22.03.2023 (hereinafter
referred to as the 'impugned order') passed by learned Additional
Sessions Judge-I-cum-Special Judge, NDPS Act (hereinafter
referred to as the 'learned trial court') in Trial No. 30 of 2020
arising out of Kuchaikote P.S. Case No. 489 of 2020.
Patna High Court CR. APP (DB) No.406 of 2023 dt.15-10-2025
2/19
3. By the impugned judgment, the learned trial court has
been pleased to convict the appellants for the offences punishable
under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic
Substances Act (in short 'NDPS Act') and ordered to undergo
rigorous imprisonment for twelve years and to pay a fine of
Rs.1,20,000/-. In case of default of payment of fine, he has to
further undergo one year imprisonment.
Prosecution Case
4. The prosecution case is based on the written
application of the informant (PW-1). In his written application
(Exhibit '2'), the informant has alleged that he got a secret
information on 18.12.2020 at 10:10 AM that a big consignment of
illicit ganja is likely to come from Gopalganj side. In this regard,
he recorded his Sanha bearing No. 494 of 2020 dated 18.12.2020
and gave information to the Senior Police Officers and the nearest
Magistrate, who is the Anchaladhikari, Kuchaikote. The
Anchalaadhikari was asked to come to the police station. On the
direction of the Officer Incharge of the Police Station, the
informant (PW-1) along with Sub-Inspector Shankar Paswan and
the force of the Reserve Bal, Hawaldar Ramkumar Singh, Sipahi
Deepak Kumar, Sipahi Lalu Kumar constituted a raiding team and
they along with Anchaladhikari reached Balthari Check Post at
Patna High Court CR. APP (DB) No.406 of 2023 dt.15-10-2025
3/19
NH-28. It is further alleged that after reaching Balthari Check
Post, checking of the vehicles coming from Gopalganj started and
in course of conducting the check at the Check Post, he came
across a silver coloured Honda City Car coming from Gopalganj
side bearing registration number UP-16-N-1820. The said car was
stopped, the driver and another person who was in the car tried to
flee away but they were caught and on asking, they disclosed their
names as (1) Toofani Ram and (2) Ramkripal Yadav. On seeing the
police action, people from the neighbouring place had assembled
and he took two independent witnesses, namely, (1) Godan Shah
and (2) Sandeep Basfor who agreed to become seizure list
witnesses. Upon search of the vehicle, from the dickey of the car,
the informant found 16 packets in plastic polythene, there were
brown coloured substances in the packets which smell like ganja.
It is alleged that the accused persons said that the substance is
ganja which they were concealing in the dickey of the car and it
belongs to Toofani Ram. Both the apprehended accused were
searched and from both of them one mobile each was recovered.
The informant has further alleged that at the place of seizure
itself, the weighing machine was called for from the police station
and the 16 seized packets were weighed, they were of total 1.30
quintal. At the place of occurrence itself, informant had prepared
Patna High Court CR. APP (DB) No.406 of 2023 dt.15-10-2025
4/19
two samples in two boxes (dibbas) of 25 grams each which were
sealed also. All the above articles were seized and seizure list was
prepared on which both the independent witnesses and the Circle
Officer had put their signature. The owner of the vehicle Suryakant
Madesia along with two arrested persons were charged for
smuggling of ganja.
5. On the basis of this written application, Kuchaikote
P.S. Case No. 489 of 2020 dated 18.12.2020 was registered under
Sections 20, 22, 25 and 29 of the NDPS Act against three accused
persons, namely, (1) Suryakant Madesia, (2) Toofani Ram and (3)
Ramkripal Yadav. After investigation, Police submitted
chargesheet bearing No. 114 of 2021 dated 30.04.2021 against
three accused persons under Sections 8, 20(b)(ii)(c) and 25 of the
NDPS Act. On the basis of the chargesheet, learned trial court
vide order dated 02.07.2021 took cognizance of the offences
punishable under above-mentioned sections against three accused
persons.
6. Charges were read over and explained to the accused
persons in Hindi to which they pleaded not guilty and claimed to
be tried. Accordingly, vide order dated 18.01.2022, charges were
framed against Toofani Ram, Ramkripal Yadav and Suryakant
Madesia under Sections 20(b)(ii)(c) and 22 of the NDPS Act and
Patna High Court CR. APP (DB) No.406 of 2023 dt.15-10-2025
5/19
further against Suryakant Madesia charges under Section 25 of the
NDPS Act were also framed.
7. In course of trial, the prosecution examined as many
as eight witnesses and exhibited several documents to prove it's
case. The list of the prosecution witnesses and the list of exhibits
are being shown hereunder in tabular form:-
List of Prosecution witnesses
PW-1 Brajnath Singh
PW-2 Lalu Kumar
PW-3 Ram Kumar Singh
PW-4 Nagendra Sahni
PW-5 Shashi Ranjan Prasad
PW-6 Ujjawal Kumar Chaubey
PW-7 Arun Kumar Ram
PW-8 Deepak Kumar
List of Exhibits
Exhibit '1' Siezure List
Exhibit '2' Written Application
Exhibit '2/1' Pagination on Written Application
Exhibit '3' Formal FIR
Exhibit '4' FSL Report
Material Exhibits
Exhibits 'M1' to 16 bundles of ganja
'M/16'
8. Thereafter, the statements of the accused were
recorded under Section 313 of the CrPC. The accused took a plea
that they are innocent and have been falsely implicated in this
case.
Patna High Court CR. APP (DB) No.406 of 2023 dt.15-10-2025
6/19
9. The defence has examined two witnesses, namely,
Suraj Kumar (DW-1) and Rajan Singh (DW-2) and exhibited two
documents which are mentioned hereunder in tabular form:-
List of Exhibits on behalf of Defence
Exhibit 'D1/DW1' Original Sale Letter
Exhibit 'D2/DW1' Signature of Rajan Singh on the
Original Sale Letter
Findings of the Learned Trial Court
10. Learned trial court after analysing the evidences
available on the record found that the prosecution has succeeded in
proving the allegation of possessing and transporting ganja in a
vehicle in violation of the NDPS Act and the quantity of the ganja
was found to be commercial.
11. Learned trial court found that the prosecution has
followed the established procedure for making search, seizure and
sampling. Learned trial court found that the prosecution has
proved the place, date and time of the occurrence.
12. Learned trial court found that on the basis of the
cogent, convincing and reliable evidences brought on the record,
prosecution has been able to prove the guilt against the accused
Ramkripal Yadav and Toofani Ram who were caught at the place
of occurrence with the ganja. Hence, learned trial court convicted
Patna High Court CR. APP (DB) No.406 of 2023 dt.15-10-2025
7/19
the appellants for the offences punishable under Section 20(b)(ii)
(c) of the NDPS Act.
13. Learned trial court further found that the prosecution
has not been able to prove the case against accused, namely,
Suryakant Madesia beyond all reasonable doubts, hence, he has
been acquitted of the charged levelled against him.
Submissions on behalf of the Appellants
14. Learned counsel for the appellants assailed the
impugned judgment and order by submitting that in this case, the
established procedure for making search, seizure and sampling has
not been followed.
15. Learned counsel submits that (1) Godan Shah and
(2) Sandeep Basfor have been made independent witness to the
seizure list but have neither been made chargesheet witness nor
have been examined by the prosecution in course of trial which
shows that the entire seizure list is fabricated. It is submitted that
not a single independent witness has been examined in this case
and the witnesses who have been examined are the police officials.
16. Learned counsel submits that there are material
contradictions between the statement of witnesses regarding the
preparation of seizure list, taking out ganja from the alleged
Patna High Court CR. APP (DB) No.406 of 2023 dt.15-10-2025
8/19
vehicle and in fact the prosecution has failed to prove it's case
beyond all reasonable doubts.
17. Learned counsel submits that 16 bundles of ganja
like substance was recovered from the dickey of the vehicle but
individual weight of each bundle has not been mentioned.
18. Learned counsel submits that the seized articles were
not produced before the court along with the accused persons on
19.12.2020
rather alleged samples prepared by the informant were
produced before the court after one month of the occurrence and
the same was sent for examination to the FSL after about two
months of the occurrence. The samples kept in two dibbas did not
bear signature of the accused. The sampling was not done in
presence of a Magistrate as required under Sub-Section (2) of
Section 52A of the NDPS Act. Learned counsel relies upon the
judgment of the Hon'ble Supreme Court in the case of Bharat
Aambale Vs. State of Chhattisgarh reported in 2025 SCC
Online SC 110 (para 50) to strengthen her submissions.
19. Learned counsel further submitted that the
prosecution has failed to establish that the sample which was sent
for examination to FSL is the same which has been taken from the
alleged bundles recovered from the dickey of the vehicle.
Patna High Court CR. APP (DB) No.406 of 2023 dt.15-10-2025
20. Learned counsel submits that the prosecution has
failed to prove and establish the reasons for delay in sending the
samples. Accordingly, the impugned judgment of conviction and
order of sentence are bad in the eye of law which are fit to be set
aside.
Submission of the State
21. On the other hand, learned Additional Public
Prosecutor for the State has defended the impugned judgment
and order by submitting that the prosecution witnesses have
supported the factum of seizure of ganja like substance from the
dickey of the vehicle.
22. Learned Additional Public Prosecutor for the State
has submitted that the learned trial court after proper
appreciation of the evidences available on the record rightly held
the appellants guilty of the charges levelled against them. The
impugned judgment and order do not require any interference by
this Court.
Consideration
23. Having regard to the submissions of learned counsel
for the appellants and learned Additional Public Prosecutor for the
State as also on perusal of the trial court's record, it is found that in
this case, the informant Brajnath Singh is the Police Sub-Inspector
Patna High Court CR. APP (DB) No.406 of 2023 dt.15-10-2025
posted in Kuchaikote Police Station. In his written application
(Exhibit '2'), the informant, who has deposed as prosecution
witness no. 1, has stated that he had received a secret information
on 18.12.2020 at 10:10 AM that a big consignment of illicit ganja
is likely to come from Gopalganj side. PW-1 recorded his Sanha
No. 494 of 2020 dated 18.12.2020, gave information of this to the
Senior Police Officers and the nearest Magistrate who is the
Anchaladhikari, Kuchaikote, the Anchaladhikari was asked to
come to the police station. On the direction of the Officer Incharge
of the Police Station, the informant (PW-1) along with Sub-
Inspector Shankar Paswan and the force of the Reserve Bal,
Hawaldar Ramkumar Singh, Sipahi Deepak Kumar, Sipahi Lalu
Kumar constituted a raiding team and they reached Balthari check
post at NH-28. It is his statement that in course of conducting the
check at the check post, he came across a silver coloured Honda
City Car which was coming from the Gopalganj side, the
registration number of the vehicle is UP-16-N-1820. He has stated
that when the car was stopped, the driver and another person who
was in the car tried to flee away but they were caught and on
asking, they disclosed their names as (1) Toofani Ram and (2)
Ramkripal Yadav. In his written statement, he has stated that on
seeing the police action, people from the neighbouring place had
Patna High Court CR. APP (DB) No.406 of 2023 dt.15-10-2025
assembled and he took two independent witnesses, namely, (1)
Godan Shah and (2) Sandeep Basfor who agreed to become
seizure list witnesses. In the dickey of the car, the informant found
16 packets in plastic polythene, they were brown coloured
substances in the packets which smell like ganja. The informant
claimed that at the place of seizure itself, the weighing machine
was called for from the police station and on arrival of the
weighing machine, 16 packets were weighed, they were of total
1.30 quintal. He has stated that at the place of occurrence itself, he
had prepared two samples in two dibbas of 25 gms each which
were sealed also. The informant claimed that on the seizure list,
the two independent witnesses and the Circle Officer had put their
signature.
24. It is evident from the materials on the record that the
independent seizure list witnesses in this case have not been
examined by the prosecution and no plausible reason for their non-
examination has been offered in course of trial. The Circle Officer
has deposed as PW-6 in course of trial. He has stated that in his
presence, the seizure list was prepared and he had put his signature
thereon. It is, however, found that the I.O. (PW-4) has
categorically stated in his evidence that in course of investigation,
he had not recorded the statement of the Circle Officer. PW-6 also
Patna High Court CR. APP (DB) No.406 of 2023 dt.15-10-2025
said that the witnesses were labourers but he cannot say they were
private labourers or government labourers, he was not aware of the
age of the seizure list witnesses. The I.O. has further stated that he
had recorded the statement of the witnesses at the police station.
This Court, therefore, finds that the independent witnesses of the
seizure list have not been examined which will create a lacuna in
the prosecution case, however, we will further examine the other
materials available on the record.
25. We have found on perusal of the ordersheets of the
learned trial court that in this case, the FIR was received in the
court on 19.12.2020. The accused were also arrested and produced
with the forwarding letter, arrest memo, checklist, however, order
dated 19.12.2020 does not mention that the seized packets of
ganja were produced in the court. It is, thus, evident that the seized
ganja was not produced in the court. The evidence of the I.O.
(PW-4) would show that he has made a statement in paragraph '4'
that the seized exhibits were produced in the court on 19.12.2020
and the learned court had put its signature on all the bundles. We
are afraid that such statement of the I.O. (PW-4) is not getting
support from the ordersheets of the trial court.
26. From the evidence of the I.O. (PW-4), it may be
further found that in paragraph '10' of his deposition, he has stated
Patna High Court CR. APP (DB) No.406 of 2023 dt.15-10-2025
that the seized ganja was not handed over to him but he had
received the sample of the seized ganja which was in a plastic
dibba tied with a cloth. He has stated that on the said sample, there
were signatures of the informant, witnesses of the seizure list and
the Circle Officer. In the court, the dibba was not opened. He has
stated that on 19.12.2020, when he was going to the court, he was
given the sample by the 'Malkhana Prabhari' but he did not know
the name of the 'Malkhana Prabhari'. He did not know that on the
said date how much ganja was lying in the Malkhana. It is, thus,
evident from the statement of the I.O. that the seized ganja was not
handed over to him and as such, on 19.12.2020 when he produced
the accused in the court, he could not have produced the seized
ganja in the court. His own statements with regard to the
production of the seized ganja in court is self-contradictory.
27. This Court has further noticed from the evidence of
the informant (PW-1) in paragraph '20'of his deposition that on
the sample, the signature of the witnesses were obtained but there
was no signature of the accused persons. PW-1 has gone to the
extent of saying that the plastic dibba was sealed but the bundles
were not sealed. It is, therefore, evident that the bundles from
which some quantity of ganja was taken out and from which the
samples were prepared, were not sealed and those bundles were
Patna High Court CR. APP (DB) No.406 of 2023 dt.15-10-2025
kept in the Malkhana without bundles being sealed. PW-1 has also
not stated that he had handed over the seized ganja to the I.O.
(PW-4). It is evident from the deposition of the informant (PW-1)
and the I.O. (PW-4) read together that the bundles of ganja were
kept in the police station without sealing the bundles and the
samples which PW-1 claims to have prepared at the place of
occurrence were not containing signature of the accused on the
seal.
28. This Court has further found from the ordersheets of
the learned trial court that on 27.01.2021, one application was filed
in the court with a request to send the seized exhibits to Forensic
Science Laboratory, Muzaffarpur for testing. The court permitted
to send the samples but it is evident from the deposition of the
prosecution witnesses that the dibbas in which samples were kept
were not opened in the court. Despite the order of the court
obtained on 27.01.2021 i.e. after five weeks of the seizure, the
samples were sent to the FSL, Muzaffarpur only on 19.02.2021. It
is not known where the samples were lying from the date of
seizure of ganja, preparation of samples till sending the same to
the FSL. The FSL Report has been marked exhibit as public
document, it is Exhibit '3(4)'. A perusal of the FSL Report would
show that Chaukidar 7/3 Babujaan Ansari and Chaukidar 6/3
Patna High Court CR. APP (DB) No.406 of 2023 dt.15-10-2025
Vasirudin Ansari had handed over the sample in the office of FSL
on 19.02.2021 but they were not produced in course of trial,
therefore, the defence had no opportunity to cross-examine them
on material aspects of the matter.
29. This Court further finds that in this case, police
submitted chargesheet on which cognizance was taken by the
learned Special Court on 02.07.2021 but by that date, the FSL
Report had not come. The FSL Report seems to have been
prepared only on 26.04.2022 and it was called from the
prosecution by order of the court on 23.11.2022.
30. This Court further finds that in course of trial at the
time when the prosecution evidence was on the verge of closure on
09.11.2022, the 16 bundles material exhibits were produced by the
prosecution. On the same day, PW-7 was examined and the
material exhibits were marked 'M1' to 'M16'. It is evident from
the deposition of PW-7 that he is Arun Kumar Ram, Chaukidar of
Kuchaikate Police Station who had brought the seized exhibits
from Thave Godown on the order of Station House Officer of
Kuchaikate Police Station. He has stated in his deposition that the
material exhibits were produced before the learned court on
19.12.2020. We have already recorded hereinabove that the order
dated 19.12.2020 nowhere shows so. It is evident from the records
Patna High Court CR. APP (DB) No.406 of 2023 dt.15-10-2025
that after seizure of the alleged ganja, no certification of inventory
was made and the sampling was not done either at the place of
occurrence in accordance with law or thereafter in terms of Sub-
Section (2) of Section 52A of the NDPS Act. In this regard, we
would refer the judgment of the Hon'ble Supreme Court in the
case of Bharat Aambale (supra). The Hon'ble Supreme Court has
summerised the law relating to the search, seizure and sampling of
narcotic drugs and psychotropic substances in the following
words:-
"50. We summarize our final conclusion as under:--
(I) Although Section 52A is primarily for the disposal
and destruction of seized contraband in a safe manner
yet it extends beyond the immediate context of drug
disposal, as it serves a broader purpose of also
introducing procedural safeguards in the treatment of
narcotics substance after seizure inasmuch as it
provides for the preparation of inventories, taking of
photographs of the seized substances and drawing
samples therefrom in the presence and with the
certification of a magistrate. Mere drawing of samples
in presence of a gazetted officer would not constitute
sufficient compliance of the mandate under Section
52A sub-section (2) of the NDPS Act.
(II) Although, there is no mandate that the drawing of
samples from the seized substance must take place at
the time of seizure as held in Mohanlal (supra), yet we
are of the opinion that the process of inventorying,
photographing and drawing samples of the seized
substance shall as far as possible, take place in the
presence of the accused, though the same may not be
done at the very spot of seizure.
(III) Any inventory, photographs or samples of seized
substance prepared in substantial compliance of the
procedure prescribed under Section 52A of the NDPS
Act and the Rules/Standing Order(s) thereunder would
have to be mandatorily treated as primary evidence as
Patna High Court CR. APP (DB) No.406 of 2023 dt.15-10-2025
per Section 52A subsection (4) of the NDPS Act,
irrespective of whether the substance in original is
actually produced before the court or not.
(IV) The procedure prescribed by the Standing
Order(s)/Rules in terms of Section 52A of the NDPS
Act is only intended to guide the officers and to see
that a fair procedure is adopted by the officer in-
charge of the investigation, and as such what is
required is substantial compliance of the procedure
laid therein.
(V) Mere non-compliance of the procedure under
Section 52A or the Standing Order(s)/Rules
thereunder will not be fatal to the trial unless there are
discrepancies in the physical evidence rendering the
prosecution's case doubtful, which may not have been
there had such compliance been done. Courts should
take a holistic and cumulative view of the
discrepancies that may exist in the evidence adduced
by the prosecution and appreciate the same more
carefully keeping in mind the procedural lapses.
(VI) If the other material on record adduced by the
prosecution, oral or documentary inspires confidence
and satisfies the court as regards the recovery as-well
as conscious possession of the contraband from the
accused persons, then even in such cases, the courts
can without hesitation proceed to hold the accused
guilty notwithstanding any procedural defect in terms
of Section 52A of the NDPS Act.
(VII) Non-compliance or delayed compliance of the
said provision or rules thereunder may lead the court
to drawing an adverse inference against the
prosecution, however no hard and fast rule can be laid
down as to when such inference may be drawn, and it
would all depend on the peculiar facts and
circumstances of each case.
(VIII) Where there has been lapse on the part of the
police in either following the procedure laid down in
Section 52A of the NDPS Act or the prosecution in
proving the same, it will not be appropriate for the
court to resort to the statutory presumption of
commission of an offence from the possession of
illicit material under Section 54 of the NDPS Act,
unless the court is otherwise satisfied as regards the
seizure or recovery of such material from the accused
persons from the other material on record.
Patna High Court CR. APP (DB) No.406 of 2023 dt.15-10-2025
(IX) The initial burden will lie on the accused to first
lay the foundational facts to show that there was non-
compliance of Section 52A, either by leading evidence
of its own or by relying upon the evidence of the
prosecution, and the standard required would only be
preponderance of probabilities.
(X) Once the foundational facts laid indicate non-
compliance of Section 52A of the NDPS Act, the onus
would thereafter be on the prosecution to prove by
cogent evidence that either (i) there was substantial
compliance with the mandate of Section 52A of the
NDPS Act OR (ii) satisfy the court that such non-
compliance does not affect its case against the
accused, and the standard of proof required would be
beyond a reasonable doubt."
31. Recently, in the case of Surepally Srinivas versus
The State of Andhra Pradesh (Now State of Telangana )
reported in 2025 SCC OnLine SC 683, the Hon'ble Supreme
Court has once again followed the same view with regard to the
effect of non-compliance with the provisions of Sub-Section (2) of
Section 52A of the NDPS Act.
32. In ultimate analysis, we find that in this case, the
prosecution is not able to prove the primary evidence/documents
such as seizure and sampling of the ganja in accordance with law.
The basic requirements as laid down by the Hon'ble Supreme
Court to sustain the prosecution case are lacking. In such
circumstances, we are of the considered opinion that it would not
be safe to sustain the conviction of the appellants.
Patna High Court CR. APP (DB) No.406 of 2023 dt.15-10-2025
33. We, therefore, set aside the impugned judgment and
order and acquit the appellants of the charges giving them benefit
of doubt.
34. The appellants are in jail, therefore, they shall be
released forthwith if not wanted in any other case.
35. This appeal is allowed.
36. Let the copy of this judgment together with the trial
court's record be sent down.
(Rajeev Ranjan Prasad, J)
( Sourendra Pandey, J)
SUSHMA2/-
AFR/NAFR
CAV DATE
Uploading Date 17.10.2025
Transmission Date 17.10.2025
